ARGUED: April 4, 2017
from the Order of the Superior Court entered October 23, 2015
at No. 1584 WDA 2014, affirming the Order of the Court of
Common Pleas of Washington County entered August 29, 2014 at
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
Peer Review Protection Act, 63 P.S. §§ 425.1-425.4
("PRPA"), provides a narrow evidentiary privilege
to protect the "proceedings and documents of a review
committee" conducting peer review activities by
professional health care providers in conformity with its
provisions. In this medical malpractice action, Monongahela
Valley Hospital ("MVH") contracted with UPMC
Emergency Medicine, Inc. ("ERMI") to provide
staffing and administrative services for its emergency room.
Both MVH and ERMI claim that the PRPA's statutory
evidentiary privilege protects from disclosure the
performance file of Marcellus Boggs, M.D. ("Dr.
Boggs") that had been prepared and maintained by Brenda
Walther, M.D. ("Dr. Walther"), who served as the
director of MVH's emergency department and was Dr.
Boggs' supervisor. Dr. Boggs and Dr. Walther were employees
of ERMI. Under the facts presented in this case and the
applicable statutory language of the PRPA, neither ERMI nor
MVH may claim the evidentiary privilege. ERMI is not a
"professional health care provider" under the PRPA,
and the performance file at issue here was not generated or
maintained by MVH's peer review committee. We therefore
affirm the decision of the Superior Court upholding the trial
court's ruling that PRPA's evidentiary privilege has
no application in this case.
January 2011, Eleanor Reginelli was transported by ambulance
to MVH's emergency department with what she reported at
the time to be gastric discomfort. She was treated by Dr.
Boggs. Mrs. Reginelli and her husband, Orlando Reginelli,
allege that Dr. Boggs failed to diagnose an emergent,
underlying heart problem and discharged her without proper
treatment. Several days later, Mrs. Reginelli suffered a
2012, the Reginellis filed an amended complaint containing
four counts. Count I asserts a negligence claim against Dr.
Boggs with respect to his treatment of Mrs. Reginelli. Count
II is a claim for corporate negligence against MVH, alleging
that it failed to hire appropriately trained staff, to
oversee staff and to adopt adequate policies. Count III sets
forth negligence claims against MVH and ERMI, contending that
they are vicariously liable for the acts of their agents
(ostensible and/or actual), employees and/or servants. Count
IV asserts a claim for loss of consortium against all
defendants. The defendants filed their respective answers and
new matter. In the year that followed, the Reginellis
deposed, inter alia, Dr. Boggs and Dr. Walther. At her
deposition, Dr. Walther testified that she prepared and
maintained a "performance file" on Dr. Boggs as
part of her regular practice of reviewing randomly selected
charts associated with patients treated by Dr. Boggs (and
other ERMI-employed emergency department physicians). N.T.,
2/5/2014, at 62-63. In response, the Reginellis filed
discovery requests directed to MVH requesting, among other
things, "the complete 'performance file' for
[Dr. Boggs] maintained by [Dr. Walther.]" MVH objected
to production of the performance file, asserting that it was
privileged by, inter alia, the PRPA.
12, 2014, the Reginellis filed a motion to compel discovery
directed to MVH, seeking production of Dr. Boggs'
performance file. In its written reply to the motion to
compel, MVH argued that "the requested items are created
and used for the purpose of reviewing the services being
rendered at [MVH's] emergency room and other departments
and fall squarely under the protection of the [PRPA]."
Reply to Plaintiffs' Motion to Compel, 6/19/2014, ¶
14. In an accompanying brief in support, MVH further
indicated that "it is difficult, if not impossible, to
understand how these reports and files could not be seen as
evaluating the quality and efficiency of services ordered or
performed by health care providers." MVH's Brief in
Opposition to Plaintiffs' Motion to Compel, 6/19/2014, at
6 (citing 63 P.S. § 425.2).
August 29, 2014, the trial court granted the motion to
compel, ordering that MVH produce Dr. Boggs' performance
file to the Reginellis. In its order, the trial court stated
that the "documentation shall remain confidential with
Plaintiff's counsel, and shall not be copied or
reproduced in any fashion, and in the event that [it]
determines same is not relevant evidence in the case sub
judice, same shall be returned to [MVH]." Order,
and Dr. Boggs, who had not previously participated in
the above-described discovery proceedings, filed a motion for
a protective order, asserting its entitlement to claim the
evidentiary privilege under the PRPA for the peer review work
performed by its employee, Dr. Walther. ERMI contended that
Dr. Walther created and maintained the performance file
solely "on behalf of [ERMI]." Motion for Protective
Order, 9/22/2014, ¶ 21. ERMI explained that while MVH
has a peer review committee, Dr. Walther's work was
"separate 'outside' peer review  conducted by
[ERMI]." Id. Moreover, contrary to the
Reginellis' repeated claims that any privilege claim had
been waived when ERMI provided Dr. Boggs' performance
file to MVH, ERMI insisted that the performance had at all
times remained in Dr. Walther's sole possession.
Id., ¶ 16 ("The file at issue in the
present matter was maintained solely by Dr. Walther as part
of her review and evaluation of Dr. Boggs'
performance."). Because the performance file had not
been shared with MVH, ERMI argued that it had no relevance in
this case because, first, Dr. Walther had not selected Mrs.
Reginelli's file for review; and second, no claim for
corporate negligence had been asserted against ERMI, and
since Dr. Boggs' performance file constituted a review of
the work of an ERMI employee, it was irrelevant to the claim
of corporate negligence asserted against MVH. Id.,
filed a motion for reconsideration of August 29, 2014 order.
Contrary to ERMI's claim that Dr. Walther created and
maintained performance files "on behalf of ERMI, "
MVH posited that Dr. Walther's peer review work of the
performance of emergency department physicians was performed
"on behalf of both ERMI and MVH." Motion for
Reconsidertion, 9/22/2014, ¶ 11. Similar to its initial
arguments in opposition to the motion to compel, MVH argued
that Dr. Walther's performance reviews were "for the
evaluation of the quality and efficiency of health care
services, ensuring compliance with laws and regulations and
evaluating and improving the quality of health care rendered
by emergency department physicians, as set forth in the
PRPA." Id., ¶ 21. MVH also offered to
produce Dr. Boggs' performance file to the trial court
for in camera review "in order to satisfy this
[h]onorable [c]ourt of the applicability of the PRPA and its
prohibitions of disclosure of such information to that file
at issue." Id., ¶ 22.
the trial court could rule on either ERMI's motion for
protective order and MVH's motion for reconsideration,
both entities appealed the trial court's August 29, 2014
order to the Superior Court. In an order dated September 26,
2014, the trial court granted MVH's motion to include Dr.
Boggs' performance file in the judicial record under seal
and to retain it under seal during the pendency of the
action. In the trial court's written opinion pursuant to
Rule 1925 of the Pennsylvania Rules of Appellate Procedure,
it first ruled that any evidentiary privilege was waived when
Dr. Walther and ERMI shared the documents with MVH. Trial
Court Opinion, 11/24/2014, at 2 ("The PRPA privilege,
like other privileges, applies only to information which
remains exclusive."). The trial court further ruled that
even if Dr. Walther had kept the documents exclusively to
herself, "she was not employed by [MVH], and was in fact
an agent of ERMI, an entirely distinct entity, " and, as
a result, "it is untenable that [MVH] could claim a
privilege for documents that it neither generated nor
maintained." Id. at 2-3.
appeal to the Superior Court,  MVH reasserted its contention
that Dr. Walther, as the director of emergency medical
services at MVH, "is regularly involved in peer review
of all of the emergency department physicians and the quality
assurance process for the emergency department, on behalf of
both ERMI and MVH." MVH's Superior Court Brief, 1584
WDA 2014, at 24. MVH argued that the information contained in
Dr. Boggs' review file "is exactly the type of
information protected from disclosure by the PRPA."
Id. at 29. MVH insisted that the privilege had not
been waived merely because Dr. Walther was an employee of
ERMI, since ERMI contracts with MVH to provide emergency room
services to MVH, and that Dr. Walther, while an employee of
ERMI, is also a member of the medical staff of MVH and thus
serves MVH as an independent contractor. Id. at 31.
According to MVH, privileges are equally applicable to
independent contractors or consultants as they are to
employees as long as that independent contractor has a
similar role to that of an employee, and no provision of the
PRPA limits the evidentiary privilege to employees.
Id. at 31-32. Given her dual roles as a member of
MVH's medical staff and an employee of ERMI, MVH
contended that the two entities shared the PRPA's
evidentiary privilege, because "the two entities are
contractually bound together to provide medical services,
where both entities have obligations to oversee the practice
of physicians, and where both entities are, in essence,
sharing the medical and managerial prowess of Dr.
Walther." Id. at 33.
contrast to MVH's arguments, before the Superior Court
ERMI continued to maintain that Dr. Walther's peer review
work was "created and maintained solely by Dr. Walther
on behalf of her employer." ERMI's Superior Court
Reply Brief, 1585 WDA 2014, at 6. ERMI also repeated its
assertion that Dr. Boggs' performance file "was not
reviewed by and/or disseminated to [MVH's] Peer Review
Committee." Id. at 16. Rather than arguing that
it shared the evidentiary privilege with MVH, ERMI insisted
that ERMI and Dr. Boggs, as "as Dr. Walther's
employer and as the person whose 'performance file'
is to be disclosed by the Trial Court's August 29, 2014,
Order, " are the entities "entitled to claim
protection under the [PRPA]." Id. at 25.
Superior Court affirmed the trial court's order requiring
production of Dr. Boggs' performance file. Reginelli
v. Boggs, 1584 WDA 2014, 2015 WL 6456401 (Pa. Super.
Oct. 23, 2015). It first concluded that ERMI was not entitled
to claim the PRPA evidentiary privilege, ruling that
"ERMI, as an independent contractor, is not an entity
enumerated in the [PRPA] as being protected by peer review
privilege." Id. at *3. The Superior Court also
held that MVH could not claim the privilege based upon the
trial court's factual finding that MVH "neither
generated nor maintained Dr. Boggs' performance
file." Id. at *2. The Superior Court further
indicated that even if either party could claim an
entitlement to the privilege, "ERMI shared the file with
[MVH] … [and thus] any privilege for Dr. Boggs'
performance file that may have existed was destroyed via
disclosure to [MVH]." Id. at *3. In so ruling,
the Superior Court disagreed with ERMI's assertion that
the performance file had remained exclusively in Dr.
Walther's possession, and indicated that "it is
apparent that ERMI shared the filed with [MVH], since the
Reginellis sought the file from ]MVH] and [MVH] has provided
it in camera." Id.
and MVH appealed the Superior Court's rulings to this
Court, each claiming an entitlement to the PRPA's
evidentiary privilege with respect to Dr. Boggs'
performance file. Our task in this regard is primarily one
of statutory interpretation, which presents issues of law
requiring that we exercise a de novo standard of review and a
plenary scope of review. See, e.g., Bowling v.
Office of Open Records, 75 A.3d 453, 466 (Pa. 2013). As
with all questions of statutory interpretation, our object is
to ascertain and effectuate the intention of the General
Assembly, giving effect, if possible, to all provisions of
the statutory provisions under review. 1 Pa.C.S. §§
1921(a). The best indication of legislative intent is the
statute's plain language. 1 Pa.C.S. § 1921(b).
courts have recognized the laudable goal of the PRPA, which
was enacted "to serve the legitimate purpose of
maintaining high professional standards in the medical
practice for the protection of patients and the general
public" based upon the General Assembly's
determination that "because of the expertise and level
of skill required in the practice of medicine, the medical
profession itself is in the best position to police its own
activities." See, e.g., McClellan v. Health
Maint. Org. of Pa., 686 A.2d 801, 805 (Pa. 1996)
(plurality) (citing Cooper v. Delaware Valley Medical
Center, 630 A.2d 1, 7 (Pa. Super. 1993),
aff'd, 654 A.2d 547 (Pa. 1995)); Sanderson
v. Frank S. Bryan, M.D., Ltd., 522 A.2d 1138, 1140 (Pa.
Super. 1987) ("[t]hrough these immunity and
confidentiality provisions [§§ 425.3, 425.4] ...
the Legislature has sought to foster free and frank
discussion by review organizations") (citing Steel
v. Weisberg, 500 A.2d 428, 430 (Pa. Super. 1985));
Robinson v. Magovern, 83 F.R.D. 79, 86 (W.D.Pa.
1979) (in enacting the PRPA, the General Assembly's
intent was to "encourage peer evaluation of health care
provided so as to (1) improve the quality of care rendered;
(2) reduce morbidity and mortality; and (3) keep within
reasonable bounds the costs of health care"); see
also 63 P.S. § 425.1, Historical and Statutory
Notes (indicating that the PRPA is "[a]n Act providing
for the increased use of peer review groups by giving
protection to individuals and data who report to any review
interpreting its provisions, however, we may not ignore the
unambiguous statutory language of the PRPA "under the
pretext of pursuing its spirit." 1 Pa.C.S. §
1921(b). Such is particularly true in the present context,
since "evidentiary privileges are not favored, as they
operate in derogation of the search for truth." In
re Thirty-Third Statewide Investigating Grand Jury, 86
A.3d 204, 215 (Pa. 2014). As we have stated, "exceptions
to the demand for every man's evidence are not lightly
created nor expansively construed, for they are in derogation
of the search for truth." Commonwealth v.
Stewart, 690 A.2d 195, 197 (Pa. 1997) (quoting
Hutchison v. Luddy, 606 A.2d 905, 908 (Pa. Super.
1992)). Statutory privileges reflect public policy
determinations by the General Assembly, and "where the
legislature has considered the interests at stake and has
granted protection to certain relationships or categories of
information, the courts may not abrogate that protection on
the basis of their own perception of public policy unless a
clear basis for doing so exists in a statute, the common law,
or constitutional principles." McLaughlin v. Garden
Spot Village, 144 A.3d 950, 953 (Pa. Super. 2016)
(quoting V.B.T. v. Family Servs. of W. Pa., 705 A.2d
1325, 1335 (Pa. Super. 1998), aff'd, 728 A.2d
953 (Pa. 1999) (per curiam)).
considering the arguments of the parties, we first set forth
the provisions of the PRPA at issue here, beginning with the
definition of "peer review:"
"Peer review" means the procedure
for evaluation by professional health care providers of the
quality and efficiency of services ordered or performed by
other professional health care providers, including practice
analysis, inpatient hospital and extended care facility
utilization review, medical audit, ambulatory care review,
claims review, and the compliance of a hospital, nursing home
or convalescent home or other health care facility operated
by a professional health care provider with the standards set
by an association of health care providers and with
applicable laws, rules and regulations. Peer review, as it
applies to veterinarians, shall mean the procedure for
evaluation by licensed doctors of veterinary medicine of the
quality and efficiency of veterinary medicine ordered or
performed by other doctors of veterinary medicine with the
standards set by an association of doctors of veterinary
medicine and with applicable laws, rules and regulations.
63 P.S. § 425.2.
PRPA also defines the terms "professional health care
providers" and "review organization" as
"Professional health care
(1) individuals or organizations who are approved, licensed
or otherwise regulated to practice or operate in the health
care field under the laws of the Commonwealth, including, but